By Professor Francis A. Boyle, University of Illinois College of Law
The author won two Orders from the International Court of Justice overwhelmingly in favor of the Republic of Bosnia and Herzegovina against Yugoslavia to cease and desist from committing all acts of genocide in violation of the 1948 Genocide Convention on April 8, 1993 and September 13, 1993. This was the first time ever that any Government or Lawyer had won two such Orders in one case since the World Court was founded in 1921. And on August 5, 1993, he also won an Article 74(4) Order from the World Court to the same effect. Under Article 74(4) of the Statute of the International Court of Justice, when the Full Court is not in Session, the President of the Court exercises the Full Powers of the Court and can issue an Order that is binding upon the states parties in a case. The story is told in his book The Bosnian People Charge Genocide! (Aletheia Press: 1996).
The Bosnian President Alija Izetbegovic appointed me their General Agent with Extraordinary and Penitentiary Powers to represent the Republic of Bosnia Herzegovina before the International Court of Justice. That meant I was their Attorney of Record and their Ambassador to the World Court with responsibility to argue their case for genocide and to stop the genocide against the Bosnians. This lawsuit was the most important international human rights case ever filed at the World Court since it was founded in 1921. All I am going to do here is discuss one critical element of the case when I argued to the World Court that the mass rape of the Bosnian women was genocide. I was given complete authority by President Izetbegovic to argue this case as I saw fit, and the mass rape of the Bosnian women was a decisive component of this genocide lawsuit as I saw it.
Even the Nazis during World War II did not engage in the mass and systematic rape of women as a technique of warfare, though the Japanese came very close to it against Chinese women during the Second World War. Bosnia was appalling! It seemed to me that what was going on there was not just rape ‘“which in times of war is a war crime – but that what was going on there was genocide. Outright genocide! So I decided to argue that the mass rape of the Bosnian women was genocide to the World Court.
Now when I argued the case to the World Court I was operating on the basis of multiple and independent reputable human rights sources that what we were dealing with here was somewhere between 20,000 to 25,000 raped Bosnian Muslim women. If you look at the Genocide Convention, I was working with this definition in respect to arguing their case for genocide:
Article II. In the present Convention, genocide means any of the following acts committed with intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such’¦
(b) causing serious bodily or mental harm to members of the group’¦
Certainly rape causes both serious bodily and serious mental harm to members of the group. In this case, Yugoslavian and Bosnian Serb Christian men were raping Bosnian Muslim women.
But that is only the actus reus of the crime of genocide that I just quoted to you. I also had to prove the mens rea, and in the case of genocide, this was a specific intent offense. So I had to argue and prove that these women were being raped because of their Muslim religion or because of their Bosnian nationality or because of their Bosnian Muslim ethnicity. So how did I do that? I compiled all the victims’ statements we could get from United Nations Organs, the Council of Europe, reputable human rights organizations such as Amnesty International and Human Rights Watch, and put them all together and filed them with the World Court. And what type of evidence did I use to establish their genocidal specific intent by means of rape? Here, I am going to use some graphic language, but, hey, we are all adults here and we are lawyers. So that is just the way I had to argue the case:
I got numerous statements that, while these women were being raped, their rapists and the men surrounding them and oftentimes gang-raping them, said to them while they were in the process of raping and gang-raping them ‘Fuck Mohammad!’ That proved that the rapists and gang-rapists were motivated because of the women’s religion. Or the rapists and gang-rapists would yell to their victims while raping them ‘Fuck your Turkish mother!’ Bosnians are not Turks. They are South Slavic people, but because they are Muslims, Serbs derogatively refer to them as Turks. I put that in there to indicate these women were being raped on grounds of nationality and ethnicity. And: ‘Fuck you, you Balija whore!’ Balija is a Serb derogatory term for Bosnian Muslims. Ditto. And: ‘Fuck Alija!’ – in reference to my Client the President of the Republic of Bosnia Herzegovina Alija Izetbegovic, who was a Bosnian Muslim. Ditto. Etc
I compiled all these statements I possibly could obtain and put them into a package and filed them with the World Court. It was not enough just to prove that these women were being raped. It was not enough just to prove that these rapists and gang-rapists were war criminals and sadists. I had to prove that in the process of raping them these Christian Serbs raped the Bosnian Muslim women for religious reasons or national reasons or ethnical reasons as required by Article 2 of the Genocide Convention that says: ‘‘¦committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.’ I argued to the World Court that Christian Serb men were raping Bosnian Muslim women for national and ethnical and religious reasons.
I also argued to the World Court Article 2, paragraph (d) of the Genocide Convention to establish that the mass rape of the Bosnian women was genocide for a second count of the actus reus for genocide: ‘Imposing measures intended to prevent births within the group.’ And here, again, I used a multiplicity of victims’ statements from all reputable human rights sources and organizations, that while these women were being raped and gang-raped, their rapists and the men surrounding them and their gang-rapists, were saying to them ‘We’re going to give you a good little Serbian baby,’ or ‘We’re going to give you a good little Serb baby.’ This is because in this South Slavic culture the ethnicity is deemed to descend from the father. So, technically, if you have a child born of a Bosnian Muslim woman raped by a Christian Serb father, the baby is deemed to be Serb. Also, ‘We’re going to give you a good little chetnik baby!’ Chetnik was a term for Serbian partisan resistance fighters during World War 2. Nothing wrong with resisting the Nazis. But here these Christian Serb men were invoking the Serb term Chetnik while they were raping these Bosnian Muslim women.
Next, Yugoslavia and the so-called Bosnia Serb Army, which was in fact an arm of the Yugoslav National Army, maintained rape camps for Bosnian Muslim women throughout the Bosnian territories that they occupied. There Bosnian Muslim women were confined and reduced to sexual slavery, repeatedly raped and gang-raped, traded around, sold, and trafficked. If they became pregnant in these rape camps, we had numerous victims’ statements that their captor-rapists told them: ‘We are going to make you stay here to give birth to a chetnik baby so that you do not get an abortion.’ Yet another violation of Genocide Convention article 2(d) that I filed with and argued to the World Court.
Finally, we had large numbers of Bosnian refugees up in Canada. The Clinton administration ‘“ Clinton was such a phony and a hypocrite on Bosnia, I won’t go through it all here. But Canada was letting them in, while Clinton was not letting them into the United States on a large scale until after the Dayton Agreement. I called up to Canada and said ‘I need five courageous women, victims of rape, willing to give me their statements that I will file with the World Court and they must also be willing to testify at the World Court in front of the entire world what happened to them.’ They got me the five courageous rape victims, we had their victim statements recorded, translated into English, and I filed them with the World Court.
At this beginning stage of the case I was simply trying to get what is called ‘an indication of provisional measures of protection.’ That is the international equivalent of a temporary restraining order and injunction against all acts of genocide. So the proceedings on the merits and the trial itself would come later on down the line. At this stage, I was just trying to stop the genocide and the war and the rapes. I fully intended to call as witnesses before the World Court as many rape victims as I could fit into the schedule for the trial on the merits.
To make a long story short, I won a massive overwhelming Order from the World Court against Yugoslavia. Three measures of protection, the first that Yugoslavia itself should cease and desist from committing all acts of genocide against Bosnia and the Bosnians. I won that measure unanimously. The second, that Yugoslavia must do everything in their power to stop all these paramilitary, military, terrorist groups, and criminal gangs that they had launched upon the Bosnians, including for the purpose of the mass rape of the Bosnian women as techniques of ethnic cleansing and warfare. I won that measure with only the Russian Judge dissenting. And then third, which I had requested, that Yugoslavia do nothing more to further extend or aggravate this dispute over genocide. I won that unanimously too.
So then my Order was transmitted to the United Nations Security Council for enforcement as required by the United Nations Charter. It was for the Security Council to enforce my Order that genocide and the raping be stopped because Yugoslavia did not stop the genocide and raping and indeed they continued it and escalated it. What did the Security Council do with my Order? Nothing! Clinton sabotaged its enforcement together with the British and the French and the Russians. So nothing was done.
Amazingly, instead of enforcing my World Court Order against Yugoslavia, these Great Powers then decided to punish Bosnia and the Bosnians by coming up with the so-called Owen-Stoltenberg Plan. This would have carved up the Republic of Bosnia and Herzegovina into three little chunks of land, destroyed our Statehood under international law, robbed us of our U.N. Membership, and subjected 1.5 to 2 million more Bosnians to ethnic cleansing. The Bosnian Apocalypse was staring me right in my face!
So I returned to the World Court asking for a second Order of provisional measures of protection to stop Owen-Stoltenberg. Then the very next day I flew to Geneva where I was the Lawyer for the Republic of Bosnia and Herzegovina at the Owen-Stoltenberg negotiations in order to stop them in situ. I sabotaged the whole damn thing right then and there. I made sure it never happened. And then I went back to the World Court and won that second Order ‘“ again – a massive overwhelming victory on behalf of the Republic of Bosnia and Herzegovina against Yugoslavia to cease and desist from committing all acts of genocide against the Bosnians, both directly and indirectly by means of their genocidal surrogates. That was the end of the Owen-Stoltenberg Plan.
When the war was over, President Izetbegovic gave an interview in which he said ‘we almost lost our State in the Fall of 1993,’ which was correct. I was there. Bosnia almost fell. All of Bosnia would have been turned into Srebrenica, and I later became the Attorney of Record for the Mothers of Srebrenica and Podrinja at the International Criminal Tribunal for the Former Yugoslavia. 8,000+ Bosnian Muslim men and boys were just exterminated, and many women were raped. We would have had at least another 100,000+ more dead Bosnians and another 40,000+ more raped Bosnian Muslim women if Bosnia had fallen in the Fall of 1993.
But Clinton, Britain, France, and Russia refused to enforce my second World Court Order at the U.N. Security Council against Yugoslavia. Even most despicably, Clinton, Britain, France, and Russia sabotaged my strategy and our efforts to invoke the United Nation’s Uniting for Peace Resolution (1950) in order to have the United Nations General Assembly enforce my World Court Order against Yugoslavia. And in the Fall of 1993 Clinton finally came out of the closet and revealed his genocidal intention to carve-up and destroy the Republic of Bosnia and Herzegovina.
Clinton hauled into the White House the Dutch Foreign Minister Kooijmans to serve as his stalking horse in order to do his genocidal dirty work for him. I had already briefed Kooijmans in his office at The Hague on these so-called Bosnian peace plans, saying they were all genocidal; that he should have nothing to do with them; and asked him to help us. Instead Clinton and Kooijmans came up with what they called the Contact Group Plan, which, again, would have done the same thing as Owen-Stoltenberg: Carve-up the Republic of Bosnia and Herzegovina into three pieces, destroy Bosnia’s Statehood under international law, and subject 1.5 to 2 million more Bosnians to ethnic cleansing.
So acting pursuant to my advice, President Izetbegovic gave me the authority to sue Britain at the World Court for aiding and abetting Yugoslavia’s genocide against the Bosnians and the Republic of Bosnia and Herzegovina. We really couldn’t sue Clinton. Clinton was guilty as sin and deserved to be sued! But the only hope we had was that Clinton would change his mind. And among the other Permanent Members of the Security Council, the British were certainly the worst against us by far – though I had repeatedly offered to sue France and Russia at the World Court as well. Ditto for Croatia.
I set out to sue Britain to stop this latest Clinton/Kooijmans/Contact Group genocidal carve-up plan. I also set out to sue Britain at the World Court for aiding and abetting the Bosnian genocide, to stop the genocide, including the mass rape of the Bosnian women, and to break the genocidal arms embargo that the Security Council had illegally imposed upon the Bosnians in gross violation of their basic right to self-defense under U.N. Charter article 51. The Bosnians could not defend their women and their children. The Yugoslav National Army was one of the most powerful armies in Europe. After the Tito/Stalin split, Tito had armed, equipped, supplied and trained the JNA to repulse an invasion by the Soviet Union. By comparison, the Bosnians had no heavy weapons of their own. They were being slaughtered. I could watch it live on CNN.
In response, the British then threatened the Bosnians to the effect that if they let me argue this genocide case against them at the World Court, we will starve you to death. It was the middle of winter. All the food supplies for the Bosnians came in at Sarajevo airport that was under the control of the British and French troops. The British just threatened to cut off the supplies then and there. So under those circumstances of extreme duress, we had to withdraw that lawsuit against Britain for genocide from the World Court. The British also said: ‘And by the way, fire Boyle!’ The British and everyone else involved knew full well that so long as I was Bosnia’s Lawyer at the World Court, I would use all the powers at my command and move heaven and earth to prevent their genocidal carve-up and destruction of my Client the Republic of Bosnia and Herzegovina and the further genocide of my Clients the Bosnians.
Well, alright, I was doing this case free of charge and pro bono publico. I wasn’t paid a dime by the Bosnian government, whether for expenses or for fees. Indeed, I was eating my own expenses. It cost me $30,000 in out of pocket expenses to win those two World Court Orders that I took out of my own bank account and put on my American Express Gold Card. That money was paid back to me by a Bosnian woman living in Canada who took out a second mortgage on her home. So the Bosnian government brought in their own Bosnian lawyer to take my place, Mr. Softic. And then what happened? Here we get directly into feminist legal studies and international human rights law.
When I was flying back from the World Court to here in Champaign the day after winning my first Order, on that long airplane flight home I contemplated to myself: ‘Ok. I won this Order but now I’m going to have to prove it at the trial. And here, there’s 25,000 raped women. I did win the temporary restraining Order but proving it in Court on the merits is another matter. I want this to be done in a way that would set a precedent for the future of all women. So I am really going to need an expert on both feminist legal theory and international human rights law to conceptualize this entire matter for me on setting up, proving, and winning that the mass rape of the Bosnian women was genocide.’ So I called up my friend Professor Kathleen Mahoney, who teaches at the University of Calgary Law School in Canada and I asked her to handle all this for me and in particular to conceptualize how we are going to argue and win that the mass rape of the Bosnian women was genocide from a feminist legal studies perspective. She readily agreed to do it, free of charge and pro bono publico, eating her own expenses, and immediately set up a team of women lawyers there in Calgary and went to work on it for me.
What happened? After I was moved off the case, Bosnia’s lawyers dismissed Professor Mahoney and her team and dropped the entire issue that the mass rape of the Bosnian women was genocide from the World Court lawsuit. They dropped it all completely from the proceedings. After I had deliberately put it right in there smack dab in the heart of the lawsuit as one of the critical elements of this genocide case right from the very get-go.
And then, when it came to the trial on the merits at the World Court, I was not there, but here. I did follow it from here and as far as I could tell, Bosnia’s Lawyers did not have even one Bosnian woman victim of rape testify. I stand subject to correction by someone who actually attended the World Court trial in The Hague, but you had 20,000+ raped women, and Bosnia’s lawyers did not call even one rape victim to testify as a witness? And this despite the fact that at the very beginning of these proceedings I had told the World Court that I had at least 5 rape victims and I was going to call them all to testify at the trial about what happened to them?
So of course in its Judgment on the merits, the World Court basically said ‘Well Bosnia made the charge at the beginning of the lawsuit, but they didn’t put on any evidence in the Memorial or in the trial to support it.’ So it was summarily dismissed, and that was that. These 40,000 raped women of Bosnia were abandoned and betrayed by their own government! Likewise, the Mothers of Srebrenica and Podrinja were abandoned and betrayed by their own government! Ditto for the Women of Srebrenica!
Where do we stand now? My argument that the rape of women can constitute genocide was ratified by International Criminal Tribunal for Rwanda in the Akayesu case decided in 1998. Akayesu is the leading source of international legal authority that we have today that the rape of women can constitute genocide. As for Professor Mahoney, she and her team took all of their outstanding work and filed it with the International Criminal Tribunal for the Former Yugoslavia where it was used in the Foca Rape Camp case. The Serbs established and maintained rape camps. These Bosnian Muslim women were kept in these rape camps, they were repeatedly raped and gang-raped, they were traded around and sold and trafficked. Professor Mahoney and her team successfully argued to the International Criminal Tribunal for the Former Yugoslavia that their sexual slavery was a crime against humanity.
Now, that is a major advance for women in the development of international human rights law and of international criminal law. Up until that ruling, sexual slavery in war time had never been considered anything more serious than a series of war crimes. Thanks to Professor Mahoney and her team, sexual slavery is now a crime against humanity. More serious than a war crime, and just short of genocide.
For example I have tried to help the Sex Slaves in Korea that the male chauvinist pig militarists in Japan still call their ‘comfort women’ that were designated for their own personal sexual ‘comfort.’ Well clearly this is a crime against humanity – what the Japanese did to the Korean women and also to the Chinese women, the Sex Slaves over in China too, during World War II. And Japan still denies it as of today. In both cases, nothing meaningful has really been done to rectify these grave injustices, these crimes against humanity against the Korean women and the Chinese women by Japan. Most of these women have gone to their graves in silence and unvindicated. These Korean women and these Chinese women too have been abandoned and betrayed by their own governments.
Finally, overall, it has just been announced that on March 24, 2016, the International Criminal Tribunal for the Former Yugoslavia will issue its Verdict on Radovan Karadzic. Karadzic had been indicted for every crime in the ICTY Statute including two counts of genocide ‘“one count for Bosnia in general and the second count for Srebrenica in particular. During the summer of 1993. I stopped Karadzic, Milosevic, Tudjman, Boban, Owen, Stoltenberg, the United Nations and the European Union from carving up and destroying the Republic of Bosnia and Herzegovina with the most catastrophic consequences for the Bosnians. We were all in Geneva together! And they had the backing of Clinton and Christopher working behind the scenes in Washington, D.C. in support of their efforts to destroy us. It will certainly be nice to see Karadzic finally get his just desserts after all these years!
Similarly, working on behalf of my Clients the Mothers of Srebrenica and Podrinja. I got the ICTY Prosecutor to likewise indict Slobodan Milosevic for every crime in the ICTY Statute book including two counts of genocide – one count for Bosnia in general and the second count for Srebrenica in particular. He died while on trial in The Hague taking all his secrets with him. How convenient for Clinton, Britain, France, Russia, the United Nations, and the European Union. Dead men tell no tales! I will have to study the Karadzic Verdict and figure out what more ‘“ if anything ‘“ can now be done on behalf of the 40,000 raped women of Bosnia, the Mothers of Srebrenica and Podrinja, the Women of Srebrenica, and the Bosnians. Thank you.
Countercurrents.org via Just International